Operational Bulletin 22 – Judicial Review – Apr 28, 2017

Immigration, Refugees and Citizenship Canada frequently publishes immigration policy manuals for its personnel to provide guidance in the exercise of their functions. Below we include annotated summaries of Canada immigration policy manuals.

What This Chapter is About

This chapter provides officers with an understanding of the process for judicial reviews of decisions made under the Immigration and Refugee Protection Act (IRPA), for which no specific right of appeal exists at present. It is worth mentioning that this chapter deals specifically with overseas files that are subject to judicial review.

The Program Objectives

The judicial review process remains consistent with the obligation to ensure that decisions made under the provisions specified in the Immigration and Refugee Protection Act (IRPA) comply with those given in the Canadian Charter of Rights and Freedoms and the principles of fairness and non-discrimination. The judicial review process gives people affected by such decisions the means to have the Federal Court review the reasonableness of that decision.

The authorities passed the Immigration and Refugee Protection Act (IRPA) on November 01, 2001. The accompanying Regulations came into effect on June 28, 2002. These replace the provisions specified in the Immigration Act, 1976 and the Immigration Regulations, 1978.

The following table provides details on the provisions that apply to adoptions.

The Provision

The Reference in the Act or the Regulations

The Application for Judicial Review

A72 (1)

The Provisions Governing an Application

A72 (2)

The Right of Minister

A73

The Provisions Governing a Judicial Review

A74

The Rules

A75 (1)

The Inconsistencies

A75 (2)

The Forms Required

At the time of formulating this document, the authorities have not specified any forms.

At the time of formulating this document, the authorities have not specified any instruments and delegations.

The Distinction Between an Appeal and a Judicial Review

In an appeal or an application for a judicial review, the appellant or the applicant, as the case may be, will typically seek to challenge a decision adverse to their interests.

For appeals, the provisions specified in the Immigration and Refugee Protection Act (IRPA) provide appellants with the right to seek a remedy provided for in the Act from a specific level of appeal such as the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB). The authorities will only be able to dispose of a decision that the applicant has appealed for by:

Dismissing the appeal

Staying the effect of the decision that was appealed or,

Allowing the appeal and either:

Substituting the appellate tribunal’s decision for the decision that the authorities had made or,

Sending the issue back to the decision maker for reconsideration

In most cases, the authorities will make the determination of the appeal based on the question of an error in law or fact or both. Alternatively, the authorities will make the determination of the appeal based on the belief that the decision-making authority has not followed a principle of natural justice. In some cases, the authorities will make the determination of the appeal based on the existence of sufficient Humanitarian and Compassionate (H&C) considerations that will typically warrant special relief. For more details on appeals, officers would need to refer to OP 21.

In contrast, a judicial review of a decision is not an appeal on the merits of the case. The Court will not be able to substitute its decision for that of the decision maker. Instead, the Court will simply examine the process that led to the decision. Thereafter, it will determine if the process followed was fair and reasonable. In case the Court determines that it was not, the Court might only quash the decision in question and order a redetermination. However, the judges will not be able to order which decision the decision maker will need to make. But, they might issue directions specifying the manner in which the authorities will need to carry out the redetermination.

In some cases, the applicant might wish to seek relief based on a defect in the form of the decision or on a technical irregularity. Pursuant to section 18 of the Federal Courts Act, the Federal Court can refuse relief if no substantial wrong or miscarriage of justice took place. Alternatively, the Federal Court could take steps to correct the irregularity. For more details, officers will need to refer to the excerpts of sections 18 and 18.1 of the Federal Courts Act given in Appendix B.

The Guidelines for Leave Required

The provisions specified in A72 to A75 provide for judicial review by the Federal Court of any matter under the Immigration and Refugee Protection Act (IRPA). The applicant will need to make an application for leave to the Court. This will commence the review process. It is worth mentioning that the applicant will not be able to seek leave until the applicant has exhausted all avenues of appeal to which the applicant is entitled.

The requirement for leave does not in itself deprive applicants of an independent review of their cases. Instead, the Federal Court manages this screening mechanism by itself. This helps in ensuring that meritorious cases continue to receive leave for a full judicial review.

The Time Limit for Filing the Application for Leave

In some cases, an issue might arise from a decision made outside Canada. In this scenario, the applicant has 60 days after receiving notification of the decision to apply for leave and judicial review. This is in accordance with the provisions specified in A72 (2) (b). In certain circumstances, the Court might consider extending this deadline.

The Possible Outcomes of an Application for Leave

The regulations require the judge to dispose of the leave application without delay and in a summary way. This is in accordance with the provisions specified in A72 (2) (d). The Court will usually dispose of leave applications without personal appearances. In case the Court denies the leave application, then the matter is at an end. If, however, the Court grants the leave application, then the judge will set the conditions for the full hearing of the judicial review application.

The Scheduling of the Judicial Review Hearing

The judge who grants leave will need to fix a date and a place for the full hearing to take place. The judge will need to ensure that the full hearing takes place no sooner than 30 days and no later than 90 days after granting leave. This applies in all cases, unless the parties agree to an early hearing.

The Appeals of Decisions of the Federal Court

The Federal Court judge’s decision on the application for leave is final. As such, no one will be able to appeal against it. Applicants can appeal a decision of a judge on a full judicial review application to the Federal Court of Appeal. But, the authorities only permit this if the judge certifies that the case involves a serious question of general importance. This is in accordance with the provisions specified in A74 (d).

The party requesting the judge to certify a serious question of general importance will need to specify the precise question. It is worth mentioning that the judge will ultimately determine the wording of the certified question before certifying it. This is in accordance with the provisions specified in subsection 18 (2) of the Federal Court Immigration and Refugee Protection Rules.

The Appeals of Decisions of the Federal Court of Appeal

The authorities permit applicants to appeal decisions of the Federal Court of Appeal to the Supreme Court of Canada only with leave of that Court. This is in accordance with the provisions specified in subsection 40 (1) of the Supreme Court Act.

The Term

The Definition

Affidavit

An affidavit refers to the applicant’s or officer’s sworn recital of the facts and procedure followed relevant to the decision that the applicants are challenging by way of judicial review. Affidavits filed in the Federal Court will need to conform to the Court’s rules regarding formality. For more information, officers will need to refer to the section titled ‘The Procedure for Preparing an Affidavit’ that appears subsequently in this document i.e. section 12 of OP 22.

Application

In this chapter, the term ‘application’ denotes either applications for leave to commence an application for judicial review or applications for judicial review, depending on the context.

Certiorari

When translated, this means ‘inform me more fully’. This writ serves to command inferior tribunals to provide its record to the superior court for review ‘to the end that the authorities might do justice’. The result of a successful application will be the quashing of the tribunal’s decision. Courts do not usually issue writs if the prescribed statutes provide for an appeal process.

On certiorari, the court will usually not delve into the merits of the case. But, it will question the jurisdictional and procedural aspects of the decision.

A certiorari is one of the writs that is usually sought in judicial reviews of officers’ decisions i.e. to quash a decision. The other writ that is highly sought is the order of mandamus, which refers the decision back for reconsideration by another officer.

For more information, refer to Prerogative Writs.

Habeas Corpus

This literally means ‘you have the body’. It serves to direct the authority who has an individual in custody to come forward for justifying the detention. This centuries-old remedy against arbitrary imprisonment is fundamental to the Canadian system of justice.

On receiving this, the detaining authority will need to make a ‘return’ (or response) to the writ, showing that the detention is lawful. This writ does not arise in an officer’s decisions.

For more information, refer to Prerogative Writs.

Mandamus

The Court issues this writ (which means ‘we command’) to compel the performance of a duty. It is available in cases where the injured party has a right to have a thing done and has no other specific means of compelling the officers to perform it.

Applicants typically use this to compel public officers to perform duties imposed upon them by common law or by statute. Alternatively, they use this to compel tribunals to proceed in matters within their jurisdiction. The person against whom the courts issue this writ will need to be under a legal duty to act in a certain way. In addition, the person will need to have been asked to act in the specific manner and must have refused to do so. If granted, the writ serves to compel the performance of the act required.

Applicants could seek this writ in case there is a long delay in making a decision on a file. If there is a good reason for the delay, this application will not succeed. Instead, the authorities might defer it for a fixed period to bring it back before the court in case there is no decision by that time. For instance, if an officer is waiting for additional information from a third party who is taking an unreasonably long time to respond, an applicant could seek an order compelling the officer to make a decision without waiting for that information.

For more information, refer to Prerogative Writs.

Prerogative Writs

The remedies of habeas corpus, certiorari, mandamus and prohibition contain the principal common law means for judicial review of the decisions of government tribunals. Legislation regulates these remedies at present. However, these remedies trace their origin to common law. As such, only superior courts can issue them i.e. those courts which, historically, did not derive their authority from statute but from the Crown. People commonly refer to these writs as ‘prerogative writs’. This term emphasises that issuing these writs remains at the discretion of the court.

It is worth highlighting that the function of each writ is somewhat different. Despite this, the main feature of each is to permit the courts to supervise the actions of inferior tribunals. Inferior tribunals refer to courts that are subject to the control of higher courts. However, this supervisory role is not all-encompassing. This is because the courts remain limited in the extent to which they can go beyond the jurisdictional and procedural aspects of a decision to review the actual merits.

For more information, refer to:

Certiorari

Mandamus

Prohibition and,

Habeas Corpus

Prohibition

Courts issue this writ to prohibit the exercise of a particular function or act. Legal experts consider this writ to be a sister remedy to certiorari. But, both the writs differ in the time appropriate for their use.

Certiorari serves to quash something that the authorities have already done erroneously. In contrast, prohibition seeks to prevent an error from taking place or continuing. As such, prohibition does not wait until the emergence of a right to complaint takes place. But, applicants could seek prohibition as soon as an absence of jurisdiction has either taken place or is clearly foreseeable.

Applicants could seek this writ to prevent the authorities from making a decision or from making a decision in a particular way. For instance, consider a situation where an applicant believes that the officer responsible for the file is biased. In this scenario, the applicant could seek an order of prohibition preventing the officer from making a decision and an order of mandamus for compelling the transfer of the file to another officer.

For more information, refer to Prerogative Writs.

Tribunal

In this chapter, the term ‘tribunal’ refers to the person or the body, whose decision, order, act or omission is the subject of the application, unless expressly stated otherwise in this text. This could typically include officers or their supervisors or program managers and senior officials of the Department.

The authorities will typically notify foreign nationals of their decision. From the day of this notification of the decision, the authorities provide foreign nationals 60 days to file an application for leave to submit a judicial review application. It is worth mentioning that a judge of the Federal Court will need to feel satisfied that the case presents a serious issue worth hearing. Only then, will the judge consider granting the order for leave.

After an applicant has filed an application for leave, the Court might request a copy of the reasons for the refusal. In overseas cases, the officers will interpret this as a request for a copy of the refusal letter and the Computer-Assisted Immigrant Processing System (CAIPS) notes. The Litigation Management Division (BCL) will need to advise the visa office as to the correct procedures to follow. In most cases, the Litigation Management Division (BCL) will need to ask the visa office to provide a copy of this material to the Court Registry, the applicant’s lawyer and the Department of Justice (DOJ) lawyer. In addition, the Litigation Management Division (BCL) will need to provide all the addresses and fax numbers as well.

In some cases, it might be necessary to submit affidavit evidence for opposing the leave application. If the need for this arises, the Litigation Management Division (BCL) will need to advise the officer accordingly.

A judge of the Federal Court will consider the leave application. The judge will determine whether the case presents an opportunity for the hearing of a serious issue. In case the judge grants the leave, the Court will hold a full judicial review of the decision at a later date.

In case the judge grants leave, the Litigation Management Division (BCL) will need to contact the officer and advise the officer about the material that the officer will need to provide the Court. In many cases, this material will typically comprise certified copies of the file. In addition, the Department of Justice (DOJ) lawyer will also work closely with the officer for developing an affidavit that opposes the judicial review application.

Situations could arise where a judge considers that the Court needs documents in the possession or control of the tribunal in order to properly dispose of the application. In this scenario, the judge could issue an order specifying the materials that the tribunal will need to provide. The tribunal or the officer assigned to the task will need to provide certified true copies of the material without delay. In many cases, the tribunal or the officer assigned to the task will need to provide two certified true copies to the Court Registry and one to each of the parties. Besides this, the tribunal or the officer assigned to the task will need to provide one certified true copy to the Department of Justice (DOJ) lawyer assigned to the case. In all cases, the Litigation Management Division (BCL) or the Department of Justice (DOJ) will provide the officer with clear instructions.

If the judge grants leave, the Court Registry will need to notify Citizenship and Immigration Canada (CIC). The Department will notify the visa office concerned through the Litigation Management Division (BCL). In addition, it will provide clear directions for the preparation of the Certified Tribunal Record (CTR). The Certified Tribunal Record (CTR) is, for all practical purposes, a copy of the visa office file and the Computer-Assisted Immigrant Processing System (CAIPS) notes.

Preparing this material will need to take place in a certain manner. Only once this is complete will the authorities send this material to a number of addresses. In its instruction letter, the Litigation Management Division (BCL) will need to provide specific, tailored instructions for the preparation of the record.

In most cases, the visa office will prepare three copies of the Certified Tribunal Record (CTR) for the following entities:

One for the Court Registry

One for the applicant or their counsel and,

One for the Department’s counsel i.e. the Department of Justice (DOJ) lawyer assigned to the case

In addition, the officers will send an ordinary copy of the file to the Litigation Management Division (BCL) as well. As mentioned earlier, the authorities will provide specific instructions to the visa office for preparing this material. This includes providing the right contact numbers and addresses as well.

Upon receipt of the order granting leave, the Litigation Management Division (BCL) will need to direct the officer to immediately prepare the record of the subject of the application on consecutively numbered pages. The officers will need to follow the instructions given by the Litigation Management Division (BCL) precisely. In addition, the officers will need to give the highest priority possible to the request of the Litigation Management Division (BCL).

In many cases, the Litigation Management Division (BCL) will direct officers to do the following activities, when responding to an application for judicial review:

Make three certified copies and one additional non-certified copy of the file concerning the applicant’s application for leave

This should typically include a printout of the Computer-Assisted Immigrant Processing System (CAIPS) notes up to the date of the refusal only

The officer will need to:

Number the pages of the original file and make copies from the numbered original thereafter and,

Certify the file, binding the pages of each copy in a secured manner e.g. with the help of a grommet or a pin

It is worth highlighting that the first page of each certified copy will be a cover letter that the Litigation Management Division (BCL) will usually provide

Send one certified copy of the file by commercial courier to each of the following:

The Court Registry

The Department of Justice (DOJ) lawyer and,

The counsel for the applicant

It is worth mentioning that the Litigation Management Division (BCL) will supply the officer with the appropriate names and addresses

Send the non-certified copy by commercial courier to Citizenship and Immigration Canada (CIC) / the Litigation Management Division (BCL), to the attention of the Litigation Management Division (BCL) officer in charge of the judicial review

It is worth highlighting that the officers will need to retain the original file at the visa office

Prepare a case summary, preferably in affidavit format

In many cases, the officers will need to prepare this case summary at the same time as they prepare the certified copies

The case summary will need to provide:

Details of the assessment

The reasons for the refusal and,

The following information about the decision-making officer:

The full name of the decision-making officer

The rank of the decision-making officer i.e. FS 1, FS 2 etc.

The date the officer joined the foreign service

The date the officer commenced the relevant posting

The non-Mitnet phone and fax numbers at which the lawyer will be able to reach the officer and,

Any scheduled absences from the office in the months to come

For more information, officers will need to refer to the section titled ‘The Procedure for Preparing an Affidavit’ that appears subsequently in this document i.e. section 12 of OP 22

Send the case summary by e-mail to the Litigation Management Division (BCL) and the assigned Department of Justice (DOJ) litigator

It is worth mentioning that the officer should never give the case summary to either the Federal Court or to the counsel for the applicant

This is because the case summary is only meant for the use of the Litigation Management Division (BCL) and the assigned Department of Justice (DOJ) litigator

For more details, officers will need to refer to the excerpts of Federal Court Immigration and Refugee Protection Rules given in Appendix C.

Note:

It is critical for the officer to carefully and promptly review all the documents and information in the file (s) prior to preparing the Certified Tribunal Record (CTR)

As such, the officer will need to immediately bring to the attention of the Litigation Management Division (BCL) and the Department of Justice (DOJ) lawyer the documents or information that Citizenship and Immigration Canada (CIC) might not wish to include (and thereby disclose) in the Certified Tribunal Record (CTR)

Officers will need to ensure that the package does not include the e-mail from the Litigation Management Division (BCL)

In addition, officers will need to ensure that no material that postdates the refusal appears in the package either

Moreover, it is worth highlighting that some material on file could be CLASSIFIED for security reasons e.g. communication with the Security Liaison Officer or the Canadian Security Intelligence Service, or exempt from disclosure by reasons of solicitor – client or other privilege

In this scenario, the officers will need to contact the Litigation Management Division (BCL) and / or the Department of Justice (DOJ) lawyer assigned to the case for obtaining further instructions on the preparation of the Certified Tribunal Record (CTR)

As mentioned earlier, the officer will need to send the case summary and the certified copy of the file to the Litigation Management Division (BCL) and the assigned Department of Justice (DOJ) litigator. Upon receipt and review of the case summary and the certified copy of the file, the Litigation Management Division (BCL) and the assigned Department of Justice (DOJ) litigator will need to decide whether to provide their consent to or to oppose the application for judicial review.

In case the Litigation Management Division (BCL) and the assigned Department of Justice (DOJ) litigator decide to oppose the application, they will prepare an affidavit for the officer to execute. The Litigation Management Division (BCL) typically advises the officer of the specific deadlines that the officer will need to meet.

Federal Court rules confine Citizenship and Immigration Canada (CIC) to specific time limits for the filing of the respondent’s record and affidavit. As such, the officer will need to give top priority to the instructions received from the Litigation Management Division (BCL).

The Department of Justice (DOJ) lawyer will need to deal directly with the officer during the preparation of the affidavit. The affidavit typically becomes due 30 days from the filing of the applicant’s affidavit. In most cases, the Department of Justice (DOJ) lawyer will need to review the officer’s case summary (which the officer will need to write in affidavit form) and make the necessary changes.

Upon completing this review, the Department of Justice (DOJ) lawyer will need to instruct the officer to swear the document. This process ensures that the affidavit places an appropriate emphasis on the legal issues at play in the judicial review application. For a sample affidavit, officers will need to go through Appendix A.

The Processing Particulars

It is worth highlighting that the following particulars apply to affidavits:

The affidavit will need to be on letter-sized paper i.e. A4 size paper is acceptable

The text of the affidavit will need to be double-spaced

The officer must have used a readable and common font such as Times New Roman

The text must be in at least 12-point type

The officer will need to keep an electronic copy of the affidavit to help with the redrafting process and,

The individual who is commissioning the officer’s affidavit will need to commission any exhibits attached to the affidavit as well

It is worth highlighting that the failure to properly commission exhibits is one of the most common technical flaws in the affidavits that Department of Justice (DOJ) lawyers usually receive from officers

The Procedures for Commissioning an Affidavit

Officers of the Canadian diplomatic, consular and representative services have the authority to administer, take or receive oaths, affidavits, solemn affirmations or declarations. This is especially so as they perform their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada. This typically includes:

Ambassadors

Envoys

Ministers

Chargés d’affaires

Counsellors

Secretaries

Attachés

Consuls general

Consuls

Vice consuls

Pro consuls

Consular agents

Acting consuls general

Acting consuls

Acting vice consuls

Acting consular agents

High commissioners

Permanent delegates

Acting high commissioners and,

Acting permanent delegates

This is in accordance with the provisions specified in sections 52 and 53 of the Canada Evidence Act.

The officers will also need to use the following words on the first page of any document that they attach to the affidavit as an exhibit:

This is Exhibit No. ___ mentioned and referred to in the affidavit of _______

Sworn before me this day of

A.D.20XX.

A Commissioner for taking affidavits

Note:

The individual who is commissioning the officer’s affidavit will need to commission any exhibits attached to the affidavit as well

The Procedures for Preparing for a Cross Examination

It is worth mentioning that the most important part of every cross examination is the preparation. The preparation typically takes place:

When the officer, in conjunction with the Department of Justice (DOJ) lawyer, is preparing their affidavit and,

Prior to the cross examination itself

Some aspects that officers would do well to remember include:

The affidavit is the officer’s evidence

As such, the officer will need to be completely satisfied with each detail of the drafted affidavit

In addition, the officer will need to be completely satisfied with each of the exhibits attached to the affidavit

In case there are any problems, the officer will need to discuss them with the Litigation Management Division (BCL) and the Department of Justice (DOJ) lawyer

The officer must need to know the facts surrounding the case

In particular, the officer will need to go over the tribunal record and the Computer-Assisted Immigrant Processing System (CAIPS) notes

The officer will need to remember that on each statement of fact made in the affidavit, the officer must be able to answer questions such as:

What is the source of this statement and,

What is the basis for my conclusion

The officer will need to have a telephonic discussion with the Department of Justice (DOJ) lawyer in order to try to identify the likely areas on which the authorities will examine them

In addition, they will need to confirm their position with respect to the issues the authorities raise

The Department of Justice (DOJ) lawyer bears the onus for preparing the officer completely for the cross examination

The officer will need to tell the Department of Justice (DOJ) lawyer or the Litigation Management Division (BCL) in case they feel nervous or uncomfortable at all

The Department of Justice (DOJ) lawyer or the Litigation Management Division (BCL) will need to ensure that they are able to answer any questions that the officer might have about the process, the type of questions that the authorities could ask, what the officer might bring etc.

Officers should not be afraid to ask the Department of Justice (DOJ) lawyer or the Litigation Management Division (BCL) anything that they feel they are unclear about

The authorities have provided a party the ability to cross examine a witness who testifies. Similarly, the applicant has the right to cross examine the officer on their affidavit as well. It is up to the applicant to decide whether any cross examination is necessary. Accordingly, a cross examination will not result each time the authorities file an affidavit. However, the prospect of going through a cross examination is a possibility each time an officer files an affidavit. As such, both the officer and the Department of Justice (DOJ) counsel will need to keep this aspect in mind even as they go about preparing the affidavit.

Upon filing of the officer’s affidavit, the applicant has 20 days in which to proceed with the cross examination of the officer. As such, officers will need to make themselves reasonably available within that period. Otherwise, the Court could well consider striking out the affidavit. The authorities could consider extending this 20-day period, on consent, up to a total of 30 days from the date the officer files the affidavit. In some extraordinary circumstances, the Court could consider granting extensions for longer spans of time, on motion by a party.

In many cases, officers might go through a cross examination by teleconference call. This is because of geographic considerations. Therefore, the officer and the Department of Justice (DOJ) lawyer will need to agree on the day and the specific time of the teleconference call. The speakers will typically comprise:

The applicant’s lawyer

The Department of Justice (DOJ) lawyer and,

A stenographer

The lawyer for the applicant will need to call the officer. The lawyer and the Department of Justice (DOJ) litigator will then need to introduce themselves. A stenographer will be present at the teleconference call. The role of this stenographer will only involve recording each question posed by the applicant’s counsel and each answer the officer provides to the questions raised. There will be no judge present at the teleconference call. This is because the officer is not giving evidence as in a trial, but rather, is giving evidence to be recorded later for use at a judicial review. When they call the officer, the officer will need to swear an oath or affirm that they will answer questions truthfully. In addition, another consular officer will be present for administering the oath or the affirmation.

Thereafter, the applicant’s counsel will begin to ask the officer questions. The examination will typically begin with questions regarding the officer’s occupation, the present position and the number of years that the officer has spent in that position and / or location. Following this, the examination will then move on to specific questions about the officer’s division in the particular case.

After the applicant’s counsel finishes asking the officer questions, the Department of Justice (DOJ) lawyer might feel the need to ask questions too. Legal experts refer to this as redirect examination or reply examination. The purpose of redirect examination is to try to clarify the testimony the officer gave to the applicant’s counsel and not to set out the officer’s version of the case in full.

As mentioned above, there will be no judge present in the room. As such, in case a dispute arises between the parties as to the propriety of a question, or a refusal to answer a question, the parties will need to bring the matter before a judge for resolution at a later date. In some cases, the judge might agree that the officer should have answered the question. In this scenario, the authorities might require the officer to re-attend to answer any questions that the officer had improperly refused. In practice however, it is worth highlighting that the concerned parties rarely bring about such motions.

It is also worth mentioning that in some cases, the applicant might choose to conduct a written cross examination instead of an oral one. Although written cross examinations are uncommon, the authorities permit them. In this scenario, the applicant’s lawyer will need to file and serve a list of questions that the applicant wants the officer to answer. The officer will need to answer the questions raised in affidavit forms. In addition, the officer will need to prepare the answers in conjunction with the Department of Justice (DOJ) lawyer.

Note:

Once the cross examination commences, the officer will need to note that the Department of Justice (DOJ) lawyer will not be able to discuss any aspect of the case with the officer until the conclusion of the cross examination

Situations could arise where the officers come across issues or circumstances that the information provided in this chapter does not address. In this scenario, officers will need to refer their questions or comments to the Litigation Management Division (BCL) at National Headquarters (NHQ).

The Role of the Litigation Management Division (BCL)

The Litigation Management Division (BCL) is a directorate in the Case Management Branch (CMB) at National Headquarters (NHQ). It is involved in all overseas litigation cases. Once the process of litigation commences in a case, the Litigation Management Division (BCL) will need to act as a liaison between the Department of Justice (DOJ) lawyers and the officer whose decision the applicant is challenging. The Litigation Management Division (BCL) will typically:

Provide the necessary instructions to the Department of Justice (DOJ) lawyers with respect to pending litigation

In all cases, the Litigation Management Division (BCL) will need to instruct the officer on what the officer needs to and the timeframes applicable.

The Litigation Management Division (BCL) is also responsible for monitoring and managing developments in the areas of immigration, citizenship and refugee litigation. It ensures that the authorities take preventive program action for lowering program vulnerability to court challenges as well. This will typically involve ensuring that the program and policy sectors have adequate opportunity to review, evaluate and respond to developments in litigation issues that might have significant consequences for departmental policy or programs. The Litigation Management Division (BCL) will also need to identify issues that require strategic consideration by the Department’s senior management through the Litigation Strategy Committee too.

The Role of the Department of Justice (DOJ) Lawyers

The Department of Justice (DOJ) lawyers typically represent the Minister in all applications before the Federal Court and the provincial courts. The Litigation Management Division (BCL) analysts will typically issue instructions to the lawyers based on an analysis of the issues and various program considerations. Some cases might involve direct communication between the visa office and the Department of Justice (DOJ).

The Role of the Departmental Legal Services Unit (DLSU)

The Departmental Legal Services Unit (DLSU) remains staffed by Department of Justice (DOJ) lawyers. As such, it serves to provide legal support to Citizenship and Immigration Canada (CIC) in its day-to-day operations. Some cases might well be sufficiently novel or complex. In this scenario, the Department of Justice (DOJ) lawyer or the Litigation Management Division (BCL) analyst might ask the authorities to assign a Departmental Legal Services Unit (DLSU) lawyer to the case. This lawyer will provide additional support to the litigator and the Litigation Management Division (BCL) analyst, as and when required. The need for involving a Departmental Legal Services Unit (DLSU) lawyer will typically arise in cases involving Charter challenges, cases with serious policy implications or high profile litigations.

Registry No. IMM-XXXX-97

FEDERAL COURT OF CANADA

B e t w e e n:

[ INSERT FULL NAME OF PARTY]

Applicant(s)

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

AFFIDAVIT OF FRANCIS LAURIE SMITH

I, FRANCIS LAURIE SMITH, Second Secretary (Immigration) at the High Commission for

Canada in London, England, United Kingdom [or, at the Embassy of Canada in Lima, Peru, etc.],

MAKE OATH AND SAY AS FOLLOWS:

I am a foreign service officer at the FS-1 (or 2, or EX-01, etc.) level and I have been employed by the Department of Citizenship and Immigration in this capacity since January yy, 200x. I have been appointed as an officer in the Immigration Section of the Canadian High Commission in London, United Kingdom, since September yy, 19xx. My duties include the assessment, evaluation and processing of applications for permanent residence in Canada submitted to the Canadian High Commission in London and, being the officer assigned to process the Applicant’s permanent resident visa, I have knowledge of the matters to which I hereinafter depose.

From paragraph 2 onwards, present the facts of the case under judicial review, usually in chronological order. If citing an important or key document, consider including it as an exhibit to the affidavit, bearing in mind that most documents from the visa file are already before the Court in the certified tribunal record. To do so, at the end of the sentence in which the document is referred to, add the words: “a true copy of which I attach as Exhibit A” (or B, C, etc., as the case may be).

An affidavit also typically includes wording attesting to the truth of the CAIPS notes. A sample of the wording would be as follows:

Notes taken by me at the interview with the applicant were recorded in the Computer-Assisted Immigration Processing System (CAIPS), an electronic file system in use at [the name of your visa office] for the processing of applications for admission to Canada. The steps involved in processing an application are recorded chronologically in CAIPS. When a user quits the CAIPS “notes screen,” their initials, the date and the notes entered are automatically recorded. Thereafter, a user can access and review these notes, but they cannot be modified or deleted.

The notes taken by me at the interview and entered into CAIPS were taken at the time of the interview with the applicant. These notes accurately reflect the questions posed to the applicant and the answers given by the applicant at the interview.

A printout of the CAIPS notes of the interview is included as part of the record, copies of which I certified on XX XX XX and which I have arranged to be transmitted to counsel for both parties as well as the Registry of the Federal Court.

Once you have recited the facts of your assessment of the application for permanent residence, or for a student or temporary resident visa, stressing of course your reasons and considerations in refusing the application, you will close your affidavit by swearing it, as described below:

SWORN BEFORE ME at the )

Canadian High Commission, in)

the City of London, England, ) _________________________________

United Kingdom this )

day of [insert month], 20XX. )

_____________________________

A Commissioner, etc.

18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction:

to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Armed Forces serving outside Canada.

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

R.S., 1985, c. F-7, s. 18; 1990, c. 8, s. 4; 2002, c. 8, s. 26.

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

(3) On an application for judicial review, the Federal Court may:

order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

(4) The Federal Court may grant relief under subsection (3) if it is satisfied the federal board, commission or other tribunal:

acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

erred in law in making a decision or an order, whether or not the error appears on the face of the record;

based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

acted, or failed to act, by reason of fraud or perjured evidence; or

acted in any other way that was contrary to law.

(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may:

refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and

in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate

It is worth mentioning that these rules are subject to change by the Chief Justice of the Federal Court.

Obtaining Tribunal’s Decision and Reasons

9. (1) Where an application for leave sets out that the applicant has not received the written reasons of the tribunal, the Registry shall forthwith send the tribunal a written request in Form IR-3 as set out in the schedule.

(2) Upon receipt of a request under sub-rule (1) a tribunal shall, without delay:

send a copy of the decision or order, and written reasons therefor, duly certified by an appropriate officer to be correct, to each of the parties, and two copies to the Registry; or

if no reasons were given for the decision or order in respect of which the application is made, or reasons were given but not recorded, send an appropriate written notice to all the parties and the Registry.

(3) A tribunal shall be deemed to have received a request under sub-rule (1) on the tenth day after it was sent by mail by the Registry.

(4) The applicant shall be deemed to have received the written reasons, or the notice referred to in paragraph 9(2)(b), as the case may be, on the tenth day after it was sent by mail by the tribunal. SOR/98-235, s. 8(F); SOR/2002-232, s. 15.

The Disposition of Application for Leave

14. (1) Where:

any party has failed to serve and file any document required by these Rules within the time fixed, or

the applicant’s reply memorandum has been filed, or the time for filing it has expired, a judge may, without further notice to the parties, determine the application for leave on the basis of the materials then filed.

(2) Where the judge considers that documents in the possession or control of the tribunal are required for the proper disposition of the application for leave, the judge may, by order, specify the documents to be produced and filed and give such other directions as the judge considers necessary to dispose of the application for leave.

(3) The Registry shall send to the tribunal a copy of an order made under sub-rule (2) forthwith after it is made.

(4) Upon receipt of an order under sub-rule (2), the tribunal shall, without delay, send a copy of the materials specified in the order, duly certified by an appropriate officer to be correct, to each of the parties, and two copies to the Registry.

(5) The tribunal shall be deemed to have received a copy of the order on the tenth day after it was sent by mail by the Registry. SOR/98-235, s. 8(F).

15. (1) An order granting an application for leave:

shall specify the language and the date and place fixed under paragraphs 74(a) and (b) of the Act for the hearing of the application for judicial review;

shall specify the time limit within which the tribunal is to send copies of its record required under Rule 17;

shall specify the time limits within which further materials, if any, including affidavits, transcripts of cross-examinations, and memoranda of argument are to be served and filed;

shall specify the time limits within which cross-examinations, if any, on affidavits are to be completed; and

may specify any other matter that the judge considers necessary or expedient for the hearing of the application for judicial review.

(2) The Registry shall send to the tribunal a copy of an order granting leave forthwith after it is made.

(3) The tribunal shall be deemed to have received a copy of the order on the tenth day after it was sent by mail by the Registry. SOR/2002-232, s. 8.

17. Upon receipt of an order under Rule 15, a tribunal shall, without delay, prepare a record containing the following, on consecutively numbered pages and in the following order:

the decision or order in respect of which the application for judicial review is made and the written reasons given therefor,

all papers relevant to the matter that are in the possession or control of the tribunal,

any affidavits, or other documents filed during any such hearing, and

a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application for judicial review,

and shall send a copy, duly certified by an appropriate officer to be correct, to each of the parties and two copies to the Registry. SOR/2002-232, s. 14.